This Essay's purpose is to show how Trump v. CASA should be read-and how it emphatically should not be read. While CASA rejected one pathway to universal injunctive relief on statutory grounds, the decision simultaneously left intact a number of alternative routes to broad relief, including complete-relief injunctions, universal remedies under the Administrative Procedure Act and other statutes, class actions, and relief based on associational and state standing. The Trump Administration, however, has consistently advanced inflated readings of CASA-characterizing it as a far more sweeping limitation on remedial scope than the decision actually was-and has accused lower courts of flouting the decision. But a close examination of CASA's holding, reasoning, and limitations reveals why it is a grave error to portray lower courts that issue broad remedies in the wake of CASA as acting in defiance of the decision. Lower courts that are correctly perceiving CASA's metes and bounds and conscientiously grappling with them across a variety of contexts are not defying CASA's mandate, but rather are doing the work that CASA left them no choice but to do. Those who depict this judicial work as insubordination whenever it results in a broad remedy against the executive branch have fundamentally misunderstood the task that CASA left to the lower courts. By framing legitimate judicial deliberation as defiance, the Trump Administration's rhetoric threatens to poison intrabranch dialogue within the Article III judiciary and to corrode the legitimacy of judicial review. Ultimately, CASA's most immediate danger may lie not in its holding, but in the Trump Administration's instrumental use of the decision as part of its broader effort to undermine judicial review across the board. A correct understanding of CASA's actual scope-including its limitations and unresolved questions-is essential both for fending off strategic misrepresentations of the decision and also for preserving the foundational principle, articulated in United States v. Lee, that in America, all government officers, "from the highest to the lowest, are creatures of the law and are bound to obey it."
The number of federal departments and agencies focused on countering threats to the United States, protecting soldiers and civilians, strengthening the country's physical and digital infrastructure, and defending the political and constitutional structure from (primarily foreign) attack dwarfs the number in existence when Congress introduced the Administrative Procedure Act (APA). That statute sought to prevent the country from slipping into authoritarianism while ensuring that the United States retained the flexibility necessary for its own defense. It included exceptions related to military authority and foreign affairs alongside substantive and procedural requirements. Despite the carveouts, the APA has played an inextricable role in regulating the "National Security Administrative State" (NSAS), comprised of executive branch entities directed by Congress and the President to promulgate legally binding instruments to secure national security at home and abroad. Many of its provisions have a profound impact on the rights to life, liberty, and property; statutory and constitutional interpretation; and citizens' First Amendment right of access to government information. Yet the structure of the NSAS and the APA's role in limiting government overreach have flown under the radar, with treatises and scholarship all but ignoring it. This Essay breaks new ground, for the first time defining and providing an overview of the NSAS. While many instruments remain classified, an increasing number are subject to the APA. Courts have narrowed the foreign affairs exception and, in relation to the military exemption, become more sympathetic to servicemember claims. The APA's integration, moreover, is likely to grow. The Supreme Court's reasoning in Loper Bright Enterprises v. Raimondo is consistent with the APA's standards of review and comes at a time when courts have become less willing to grant deference in areas touching on national security. In light of the profound impact of the national security infrastructure on individual rights, the time is ripe to take account of the NSAS as an administrative entity.
Civil rights enforcement is often imagined as the work of lawyers in court. But over the course of the twentieth century, the administrative state quietly emerged as one of the most significant arenas for civil rights adjudication. In 2023 alone, individuals filed more civil-rights-related complaints with the Department of Housing and Urban Development, the Equal Employment Opportunity Commission, and the Department of Education than were filed across the entire federal court system. Yet today, the legal foundations and institutional infrastructure supporting administrative civil rights enforcement are crumbling. This Essay seeks to assess what is at stake in that collapse. It offers an account of what administrative civil rights adjudication does (or once did), the tools it provides, the enforcement possibilities it creates, and its comparative strengths and limitations. This account suggests there may be good reason to return some civil rights enforcement authority to private litigants and the courts. But it also shows that what may be lost in the administrative realm is not easily replaced: the state's own capacity to recognize, respond to, and remedy inequality.
When a court reviews an agency's regulation and finds it to be partially invalid, the court must determine the proper remedy. Should the court vacate the entire regulation, issue a remand to the agency without vacatur, or sever the offending portion and allow the lawful remainder to take effect? The issue of regulatory severability is increasingly important in administrative law after Corner Post, Inc. v. Board of Governors of the Federal Reserve System effectively eliminated the statute of limitations for APA challenges and Loper Bright Enterprises v. Raimondo ended judicial deference to agency interpretations of law. Few circuit courts or scholars have considered regulatory severability as a concept distinct from statutory severability. Yet as this Note argues, there is good reason for a difference to exist: While judicial review of statutes is governed by constitutional first principles, judicial review of regulations is governed by statutes. Indeed, in early administrative law cases, the Supreme Court looked to statutory review provisions to determine what remedies a court could provide for a partially invalid agency action. This Note advances a novel interpretation of the APA's judicial review provision as instructing courts to sever regulations where possible. The Supreme Court has repeatedly described the APA as the "fundamental charter of the administrative state." And in landmark cases from Darby v. Cisneros to Loper Bright, the Court has proven willing to overturn settled practices in the circuit courts when those practices fail to align with the APA's text. Obeying the APA's preference for severability is a critical next step in the wake of decisions rendering more agency actions more vulnerable to judicial second-guessing.
Multimember commissions are a central feature of the modern administrative state. Yet a growing number have lost their legal authority to function-not through statutory repeal or defunding, but because they lack a quorum. In many cases, these quorum losses stem from the President's assertion of a broad removal power, which causes vacancies in the commission's membership. Quorum losses lead to agency inaction, prevent the executive branch from ensuring faithful execution of the laws, and threaten the constitutional rights of individuals who appear before adjudicatory commissions. This Article presents an empirical study of quorum rules in multimember commissions. It traces how commissions lose their quorums, explores the consequences of quorum loss for administrative governance and individual rights, and analyzes the legal rules that govern when-and whether-a diminished commission may act. This Article makes three contributions. Doctrinally, it explains the body of common law that governs the transaction of business in multimember institutions and shows that courts have inconsistently applied these principles in the administrative law context. Empirically, it draws on original data to illustrate variation in the quorum and voting requirements within seventy-six multimember commissions. Normatively, the Article raises questions about the ways in which quorum losses may impact the ability of the executive branch to fulfill its constitutional and statutory responsibilities. We urge the application of commonlaw quorum and voting defaults in the face of statutory silence to preserve the deliberate structures Congress designed. We also contend that presidential removals that destroy quorum may be unconstitutional if they frustrate the executive's duty to faithfully execute the laws, and we call for relaxation of exhaustion requirements when agency inaction deprives individuals of judicial review. The Article concludes with recommendations for how Congress should restructure statutory quorum requirements.
